Sears v. Columbian Insurance , 94 Mass. 367 ( 1866 )

Chapman, J.

The Bank of Commerce was originally summoned as trustee and made an answer. An amendment was allowed by which the trustee was called the National Bank of Commerce. If the last named bank had come and answered in abatement that it was a different corporation from the one originally summoned, and not the same, an issue of fact might have been raised which could have been tried by the introduction of appropriate evidence. On such an issue the plaintiff could have contradicted by evidence any of the statements made or evidence adduced in support of the plea. But upon a general answer such evidence is not admissible. The answers and statements sworn to by the trustee are to be considered as true, and cannot be contradicted. All that the plaintiff can do is to allege ana prove other facts not stated or denied by the trustee. Gen. Sts. c. 142, § 11. It is for this reason that a general answer is regarded as a waiver of all matters in abatement Such an answer deprives the court of the power to try the matters thus waived, and the court must now regard the writ in this case as having been served upon the identical party whose name is introduced into the case by the amendment.

The only matter presented to us by the answer is the question whether the trustee named in the writ has funds of the principal defendant in his hands ; and, as the National Bank of Commerce admits the possession of funds, it must be charged.